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Failure to disclose “check could be lost in the mail” does not violate Chapter 93a

In Lechoslaw v. Bank of America, N.A., et al., 2010 U.S. App. LEXIS 18116 (1st Cir. 2010), the plaintiff brought a Chapter 93A “unfair and deceptive trade practices” claim against Bank of America arising from the Bank’s alleged failure to inform him that the $31,787.34 check it issued to him could get lost in the mail if he deposited the check in Poland. The court affirmed the lower court’s dismissal of the Chapter 93A count, stating “the risk that letters may be lost in the mail is commonly known.”

The plaintiff initially walked into a Bank of America branch in Worcester, seeking to wire the funds to Poland for investment in a construction project. As he lacked the necessary account information to allow bank personnel to do so, the bank suggested issuing him an official bank check instead. The plaintiff later traveled to Poznan, Poland, where he deposited the bank check in a local bank. Following its usual procedures, the local bank (also a defendant in the case), mailed a copy of the check to Bank of America in New Jersey and held the funds while waiting for the check to clear.

Months passed before anyone realized the check was lost in the mail. In the meantime, the plaintiff’s construction project remained unfunded. In his Chapter 93A claim, the plaintiff asserted Bank of America personnel should have warned him that issuing a bank check was not as reliable as wiring the funds to the Polish bank. The court rejected the plaintiff’s argument that Bank of America “had an obligation to advise him of the possibility that the check could get lost in the mail and that this would delay the payment,” saying “Bank of America did not need to state the obvious.”

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